Since the Samba team disapproves of the deal, we asked Andrew Tridgell, a member of the Samba team, what Microsoft could have done to negotiate a deal with the free software community if the company is serious about a détente with the free software community.

"A good starting place would have been to talk to the Software Freedom Law Center. I am extremely disappointed that Novell spent months negotiating this deal with Microsoft without talking to the SFLC and Eben Moglen."

Tridgell says that the team had talked to Novell privately before issuing the statement, but "we wanted to make sure that both Novell and the wider free software community understood our concerns."

The Samba team has not received a specific response to the statement, according to Tridgell. However, he says that the Samba team has "talked to a number of Novell people about the patent agreement." In addition, Eben Moglen of the SFLC, counsel for the Samba Project, has "talked to them extensively since they announced the deal."

Moglen says that the SFLC has completed its review of the arrangement between Microsoft and Novell and has had "full cooperation" from Novell, and that the SFLC is now working to come to an arrangement with Novell.

"They have showed us what we need to see, they have answered our questions, we had complete and unfettered access to senior executives at Novell.... We are now working by peaceable negotiations to protect our client's legal interest, and we see no likelihood that we're going to adopt steps that involve the use of legal compulsion. If we are unable to work the situation out peacefully, that may change."

What's the problem?

According to Moglen, the patent agreement is of concern because it is discriminatory and poses a threat of dividing the commercial free software community from the non-commercial free software community.

"If the Microsoft corporation, whether it wishes to be part of this ecology in a genuine and sincere sense or not, if it succeeds in getting one distribution to pay royalties for the distribution of free software, other distributions will do so. They will have to. That will then succeed in marching the commercial sector away from the non-commercial sector, and Microsoft then will be able to use its patents to sue to block the development of software in the non-commercial sector without the fear of suing its own customers, which is the force that now constrains them from misbehavior with their patent portfolio."

If there's any doubt that Microsoft is hoping to exploit the deal to divide the Linux community, rather than to make nice with the community and respond to its customers demanding Linux, one need look no farther than comments made yesterday by Steve Ballmer at the Professional Association for SQL Server (PASS) conference in Seattle. As reported by Linuxworld.com.au, Ballmer says that "Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered.... We believe every Linux customer basically has an undisclosed balance-sheet liability."

The primary point of concern is the patent agreement, but Moglen noted that the Samba team also has concerns with "specific points of this deal" which have not been made public. Moglen declined to specify the other terms that concerned the Samba team, citing a non-disclosure agreement with Novell for access to the full agreement.

We also asked if Moglen or the SFLC was in negotiation with Microsoft about the agreement. Moglen did not confirm or deny that he was talking to Microsoft. "I would not be advancing the course of discussions if I made any statement about who we are talking to here in specific terms. I will only say that it is my experience that Microsoft has never been in any hurry to identify itself as in direct negotiation with the free world.... In general, it is better at this point to say that all lines of communication that I think are necessary in order to resolve this situation peacefully are open, that we have not been unable to reach any parties that we thought it would be prudent or productive to talk to."

Novell was not able to provide a spokesperson for a full interview in time for this article. However, Justin Steinman, director of marketing for Novell, has provided a statement that indicates Novell is not willing to ditch the patent agreement with Microsoft.

"Novell has the utmost respect for the Samba community and their contributions to open source. We are currently working on a public response to the Samba team that addresses their concerns. I can confirm that Novell will not be terminating our agreement with Microsoft, which was the primary request from the Samba team. We'd ask for your patience to give us another couple days to pull together the rest of our response."

What's the big deal?

Posted by: Anonymous Coward
on November 18, 2006 03:59 AM

Honestly, from a standpoint of a person NOT married to either side, this just sounds like a lot of people who hate Microsoft and want to spite them at all costs. Maybe it is, maybe it isn't. However, I fail to see what would be bad about a Linux distro that inter operates better with Windows. Windows is not going to go away no matter how much Linux guys hate it. WHy is it not better to try to live with them?

Re:What's the big deal?

Posted by: Anonymous Coward
on November 18, 2006 04:48 AM

re-read the article then have a glance over the previous articles from the inital anouncement.

The patent agreement validates a baseless claim that Linux and distribution code somehow contain Microsoft property. It further states that users of Suse are protected under Novell's unbrella however all other distributions that don't pay up to MS, are open to legal action; based on the fictitious IP.

This scares big business who are finally starting to consider FOSS software; "crap, if we use that solution M$ is going to pull us into court, we better not risk it." - and again (as often in the tech industry) the better solution looses out over the richer merketing and legal counsel.

That may be the short term goal but M$ has never been short sighten and has no problem sitting on a five year planned strategy when taking out competition to there profit margin. Thus the other concern is that has found a foothold in the Linux distributions (some of there biggest competition) where it can now sinc in claws in hopes of ripping the FOSS community from end to end.

"If the Microsoft corporation, whether it wishes to be part of this ecology in a genuine and sincere sense or not, if it succeeds in getting one distribution to pay royalties for the distribution of free software, other distributions will do so. They will have to. That will then succeed in marching the commercial sector away from the non-commercial sector, and Microsoft then will be able to use its patents to sue to block the development of software in the non-commercial sector without the fear of suing its own customers, which is the force that now constrains them from misbehavior with their patent portfolio."

If you where MS, after running os2Warp out of the OS market, nearly running Apple out of the OS market, running Netscape out of the closed source browser market, trying to run Sun Java out of their own market, and now being faced with a valid, free (as speech) and un-taxed (pay for service not software) alternative to your over priced and buggier than a month old corpse OS; what would you do to stomp it out?

MS has never won on the basis of quality of product. They win based on license agreements, lock-ins and legal action.

I'll give MS credit where due; admitting that they often surprise me but I won't be running Suse and had I written my Novell certs, I'd be sending them back for remittance.

MS will "extend" Novell's Suse to work with Windows the MS way rather than finding equal ground. Then, when that's in place, we'll see those old MS colours shine through again as they do everything to squeeze out the MS unaproved distributions.

Re:What's the big deal?

Posted by: Anonymous Coward
on November 18, 2006 06:47 AM

Oh, I would gather that MS DOES have patent claims on Linux. After all, Linux proponents have ALREADY come up with 20 or so MS patents that they are "wary of".With projects as large as a full Linux distibution, I would bet that a distro violates hundreds of patents from dozens of companies.

Question is, will MS just keep threatening, or actually start lawsuits? If they sue, will IBM step in and blast away at MS with it's own warchest of patents?

It's one thing to rattle swords, and another to start lopping heads off. If MS really does start causing major problems, I would bet that the EU gets REALLY tough, and even the DOJ may get some balls.

Re:What's the big deal?

Posted by: Anonymous Coward
on November 18, 2006 08:48 AM

That is why he is going to do it silently... in 10 years... one by one... he has the money.. he has prove to have the patience... now he has novell... it's all a chess game and MS nows how to play it, he nows there's no such thing as short term wins but long term victory.

Re:What's the big deal?

Posted by: Anonymous Coward
on November 20, 2006 07:36 PM

If M$ were serious about producing the best technology possible and which their customers should have a right to expect they'ld be producing their own version of Linux or BSD or other Unix by now.This is what I'ld expect from a company dedicated to software and innovation which is how they like to be seen, but they seem more interested in money grabbing and manoeuvring (well, for a long time already).

Re:What's the big deal?

Posted by: Anonymous Coward
on November 21, 2006 07:05 AM

Personally, I think it is a big deal but not for the reasons people think. If fools want to pay Microsoft for patent protection, by all means do so, but I wonder if they may later be opening themselves up to a different set of problems. Basically:

1) Under the GPL v. 2, many of these software programs cannot be distributed if one cannot guarantee redistribution rights (including appropriate patent licenses). If Novell is aware of any such infringement, they are not allowed to distribute the GPL'd software program. Therefore they are given *no* protection by Microsoft in this agreement.

2) This is bad for Microsoft because it creates an impression (accurate or not) that they are willing to go down the SCO road and sue their own customers (most businesses using Linux are also Microsoft customers, right?).

In the end, this is very bad to all parties of the agreement and not for the reasons Moglen mentions.

Free software is big enough now that we can survive this. Microsoft and Novell on the other hand may not be (Novell is certainly not if things go wrong, and Microsoft is probably an even bet).

Re:Novell without Samba

Re:Novell without Samba

Posted by: Anonymous Coward
on November 19, 2006 02:47 PM

That's where the GPL v3 comes in. If the Samba team does choose GPL 3, then that license will hold Novell--and Microsoft--somewhat in check. Why? Samba is what allows us to replace Microsoft authentication servers with Free Software ones, while supporting both MS Windows and Linux/BSD clients. If Novell wants the enterprise space, they need Samba or something like it. I guess Novell could fork the latest GPLv2 Samba, but that'd then be a lot of development work. Of course, all this does assume that the Samba team adopts GPL v3, which I sincerely hope that they will do, for exactly this reason.

Novell without the Linux kernel

Posted by: Anonymous Coward
on November 20, 2006 07:54 AM

I ain't no lawyer but I think it would be a good defensive move if Mr. Torvalds and the kernel team made a decision to move to GPL v3. If v2 allows MS to control and garner a tax from the all commercial Linux/free software distros and allows MS to destroy the non-commercial distros, then the whole raison d'être of Linux disappears.

If v3 is adopted then MS will still be able to sue, but at least odious deals such as MS-Novell will no longer be legally negotiable. This will allow other commercial distros to distribute v3 software while retaining their patent threats over Microsoft's head. (e.g. IBM, Oracle etc.)

This strategy would require that the entire free software community - including the commercial distros (sans Novell) - rally round v3 in a timely fashion.